What is Movement Lawyering?

Helpful Resources on Movement Lawyering

What is Movement Lawyering?

By co-organisers Sarah Schwartz and Zoe Bush

We, like many, came to the law because we wanted to use it to tackle broader social injustice. And like many, we have been deeply frustrated with how the law in Australia is seen as neutral and apolitical when the clients and communities we work with bear the brunt of a legal system which has always worked better for rich, powerful and white Australians. We have had questions about our role as social justice and community lawyers, the ways the traditional lawyer-client relationship can disempower clients and communities, and whether, at times, by helping clients and communities navigate unjust systems, we are legitimising these systems, rather than tackling systemic injustice head on.

In the United States, we both worked with organisations and groups led by impacted communities. Zoe worked for Law for Black Lives, a Black femme-led movement lawyering organisation, on the Freedom to Thrive campaign, which seeks to build a world where safety means investment in people and planet and to end the punishment-based criminal and immigration systems. Sarah worked with grassroots organisers in Baton Rouge Louisiana on campaigns to end racist cash bail systems and the criminalisation of poverty. Through this work, we were exposed to different models and theories of lawyering, including movement lawyering.

The theory of change of movement lawyering

So what is movement lawyering? Movement lawyering is underpinned by the theory that systemic change occurs through collective action led and directed by people most affected and strives to build lasting power in historically disempowered communities. It involves lawyers working to build the power of communities and movements by using a variety of advocacy strategies, including litigation, policy advocacy, strategic use of media and political lobbying.

While lawyers have been doing this work for many decades, from supporting the union movement, the civil rights movement and, in Australia, the land rights movement, it is only over the last decade that the principles and theory of movement lawyering have been developed. In recent years, movement lawyers have supported transformative campaigns and movements such as the Movement for Black Lives’ campaign to defund police, community-led campaigns for access to HIV medication in South Africa, and the same sex marriage campaign in the United States.

Critiques and limitations of public interest lawyering

The principles and framework of movement lawyering come out of the critiques and limitations of public interest lawyering in achieving systemic change. Three core critiques are as follows:

First, the limited ability for individual legal services to address the root cause of clients’ problems when they are not delivered in conjunction with broader collective action toward systemic change. For example, Jennifer Gordon argued that individual legal services1 undermined the organising efforts of undocumented immigrant workers in New York by encouraging reliance on legal services, co-opting the role of movement leaders, and ultimately failing to address the root problem of the power imbalance between undocumented workers and employers.2

Second, the tendency for lawyers to set the agenda rather than being responsive to the vision and needs of directly impacted communities and movements. This, in turn, can result in lawyers focusing on narrow legal victories rather than supporting systemic change. In ‘Serving Two Masters’3, Derrick Bell criticised the work done by lawyers during and in the aftermath of Brown v Board of Education as undermining the leadership of directly impacted communities, who would have preferred to address the issue of funding to improve the quality of their own local schools over being transported to white schools without teachers from their own communities.

Finally, the limited ability for legal victories to achieve lasting change if not backed by efforts to change hearts and minds. This has led critics to suggest the sole pursuit of legal victories is at best wasted resources (a legal victory is unlikely to have staying power without shifting public opinion), and at worst harms communities and movements by producing backlash.

We think this limitation is particularly pronounced in Australia. Parliamentary sovereignty and the absence of a constitutional bill of rights means the vast majority of legal victories are susceptible to being undermined or overridden if they do not have political support. For example, despite the successful legal challenge to the Malaysia Solution in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, legislative action meant offshore processing ultimately continued unabated.

Movement lawyering is largely responsive to these limitations. By challenging assumptions about the role of lawyers in movements for systemic change, it provides a framework for lawyers to be led by, and shift power towards, communities and movements.

The principles and practice of movement lawyering

There are many different definitions and theories of movement lawyering. The tools of movement lawyering are already used by many community lawyers in Australia. The following is a non-exhaustive list of principles taken from our learnings from movement lawyers in the United States who we have spoken to, worked with, and learned from:

  • Working with communities and movements in a way that builds their long-term power.
  • Lawyer-client relationships as participatory, power-sharing processes (this doesn’t mean simply deferring to clients, or not being critical).
  • Communities and movements providing the direction and setting the agenda (just like paying corporate clients).
  • The law, and the work lawyers do within it, is already a site of political struggle that reinforces current power structures and is used to enforce the status quo. Movement lawyers (like their corporate counterparts) engage with the law as a tool of defensive and offensive power.
  • Accountability to movements and communities, and systems to ensure accountability.
  • Self-reflection / critical analysis and continued learning; being prepared to be regularly uncomfortable.
  • Building the leadership and amplifying the voices of those most affected by political and social injustice. Assisting our clients to get seats at tables of privilege – seats that we are often invited to occupy instead of our clients.
  • Supporting visionary and offensive work.

We find the following questions from Professor Bill Quigley helpful to think about how these principles play out in our work:

  1. Where does the direction for the lawyering come from? Does it come from lawyers or from communities and movements seeking to bring about institutional, systemic or radical change?
  2. Where does the power go? Is the purpose of the legal work to redistribute unjust power relationships and transfer power to those who have been disempowered?
  3. Who gets the glory? Are lawyers the face of a movement, or those who are impacted, the clients and the movement?
  4. Is the legal work just one part of the overall social change movement?
  5. Is the lawyer willing to be uncomfortable on some sort of regular basis? Are lawyers willing to confront our training that teaches us we are specially privileged to be in this profession and entitled to solve problems on behalf of others?4

Movement lawyering practices do not have a universal structure or form. Being responsive to grassroots needs means meeting communities/movements where they are at and adapting accordingly. The form of movement lawyering practices differs depending on whether lawyers are working with highly organised and sophisticated movements, or communities with weak or non-existent movement structures.

Although the theory of movement lawyering may be new, the practice of it is not. In fact, Australia has a proud history of lawyers working with activists and organisers. The foundation of the Aboriginal Legal Service in early 1970, by young activists and lawyers in Redfern, to fight police harassment of Aboriginal people, provides just one example5. The Redfern ALS was founded on principles of Aboriginal control and supported Aboriginal people not only through direct legal services, but also by serving as a meeting space, providing advice to other Aboriginal-controlled organisations and by setting up bail funds and halfway houses6. As stated by Paul Coe, one of its founders, the ALS did not “accept the legal status quo and politically and socially in that it is a community-run and controlled, and geared to social change, in so far as its very existence is an indictment of non-Aboriginal society in Australia.7

There are countless other examples of Australian lawyers working with grassroot movements for systemic change. There are also undoubtedly many questions about how the Australian legal profession can translate a global theory of movement lawyering to our unique legal and political landscape. The purpose of this conference is, in part, to do just that.

1 – Amy Kapczynski & Jonathan M. Berger, The Story of the TAC Case: The Potential and Limits of Socio-Economic Rights Litigation in South Africa, in HUMAN RIGHTS ADVOCACY STORIES (Deena R. Hurwitz & Margaret L. Satterthwaite eds., Foundation Press, 2009).
2 – Jennifer Gordon, ‘We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change Symposium: Economic Justice in America’s Cities’, 30 Harv. C.R.-C.L. L. Rev. 407 (1995)

3 – Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. (1976).
4 – William P Quigley, ‘Ten Questions for Social Change Lawyers’ (2012) 17 Loyola Public Interest Law Reporter 204.
5 – Johanna Perheentupa, Redfern Aboriginal Activism in the 1970s (2020) pp. 35-66.
6 – Ibid pp. 43-44.
7 – Quoted in Ibid p. 65.

Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992)

Gerald P. López

López’s book, Rebellious Lawyering, was a foundational text for so many later works on rebellious and movement lawyering. López uses storytelling to analyse the power relations inherent in the traditional social justice lawyering relationship and promotes a model of rebellious lawyering as a power-sharing relationship between lawyers, clients and communities. See https://rebelliouslawyeringinstitute.org/what-is-rebellious-lawyering/ for articles and research based on Rebellious Lawyering.

Toward a Radical Imagination of Law (2018)

Amna Akbar

‘Toward a Radical Imagination of Law’ (2018) 93(3) New York University Law Review 405 describes the radical and imaginative work of the Movement for Black Lives and its abolitionist policy platform, ‘Vision for Black Lives’. Akbar argues that radical social movements provide the solutions for structural inequality and challenges lawyers to be guided by these movements and to use the law to meet these movement’s aspirations.

Rebuilding the Ethical Compass of the Law (2018)

Purvi Shah

‘Rebuilding the Ethical Compass of the Law’ (2018) 47(11) Hofstra Law Review 11
laments the ways in which the legal profession upholds injustice, and attributes this to the way lawyers are trained in law school, to see courts as engines of justice and the law as a benevolent benefactor of justice. Shah encourages lawyers to create a new ‘ethical north star’, guided by communities and social movements.

We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change Symposium: Economic Justice in America's Cities: Visions and Revisions of a Movement (1995)

Jennifer Gordon

In ‘We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change Symposium: Economic Justice in America’s Cities: Visions and Revisions of a Movement’ (1995) 30 Harvard Civil Rights-Civil Liberties Law Review 407, Jennifer Gordon describes the long-standing challenges faced by immigrant workers on Long Island and the general failure of governments and legal services to address these challenges. Gordon addresses the conflict between individual legal service delivery and lawyering in support of organised communities to achieve social change.

Ten Questions for Social Change Lawyers (2012)

William P. Quigley

In ‘Ten Questions for Social Change Lawyers’ (2012) 17 Loyola Public Interest Law Reporter 204, Professor Bill Quigley poses 10 questions for aspiring social justice lawyers to ask themselves in order to work in pursuit of genuine social change that is led by organised communities and social movements.

Imagining Abolition: Thinking Outside the Prison Bars’ (2018)

Debbie Kilroy

In ‘Imagining Abolition: Thinking Outside the Prison Bars’ (2018) 60 Griffith Review 264, Debbie Kilroy advocates for a world without prisons and the dismantling of the racist and capitalist prison industrial complex in Australia. Kilroy also describes the work of Sisters Inside as an abolitionist organisation with its legal arm as only one facet of the organisation. Sisters Inside doesn’t speak for, but works and walks alongside First Nations women.

Justice Is Possible, But You Have to Believe It (2014)

Vince Warren

In this transcript of a speech given at the Bertha Justice Institute Social Justice Conference in 2014, Vince Warren provides guidance for how we can show up as lawyers for systemic social change in support of social movements.

Lawyering for Liberation: Lessons on Building the Power of Black-Led Movements (2021)

Derecka Purnell, Marbre Stahly-Butts, Amna Akbar

In this online discussion, movement lawyers Derecka Purnell, Marbre Stahly-Butts and Amna Akbar discuss Law for Black Lives and what it means for lawyers to use the law to build the power of black-led liberation movements.

Inaugural Conference – September 2021

The conference will be held online on 24 and 25 September 2021 due to COVID-19 and associated travel restrictions.